Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 5909
A petition for reconsideration must be acted upon within 60 days of transmission to the Appeals Board.
The Board found the petition timely as the case was transmitted and the report served on the same day, providing notice to the parties.
From the decision · page 3I.
Preliminarily, former section 5909 provided that a petition for reconsideration was deemed
denied unless the Appeals Board acted on the petition within 60 days from the date of filing. (Lab.
Code, § 5909.) Effective July 2, 2024, section 5909 was amended to state in relevant part that:
(a) A petition for reconsideration is deemed to have been denied by the appeals
Labor Code section 3208.1; Garza v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 312; Western Growers Ins. Co. v. Workers' Comp. Appeals Bd. (Austin) (1993) 16 Cal.App.4th 227
A cumulative injury occurs from repetitive work activities causing disability or need for medical treatment; findings must be based on substantial evidence including medical opinion and testimony.
The Board reviewed the evidence and found the WCJ's findings lacked substantial evidence due to inconsistent medical opinions.
From the decision · page 4II.
Turning to the merits of the Petition, applicant alleges that the August 16, 2011 incident to
the bilateral shoulders and lumbar spine is a compensable consequence injury sustained as a result
of the cumulative work injury from October 22, 2008 through October 22, 2009 to the bilateral
knees, bilateral shoulders, and lumbar spine. A cumulative injury occurs from repetitive mental or
physical activities at work over a period of time, causing disability or need for medical treatment.
(§ 3208.1; Western Growers Ins. Co. v. Workers' Comp. Appeals Bd. (Austin) (1993) 16
Cal.App.4th 227, 234 [58 Cal.Comp.Cases 323]; J.T. Thorp, Inc. v. Workers' Comp. Appeals Bd.
(Butler) (1984) 153 Cal.App.3d 327, 332-333 [49 Cal.Comp.Cases 224].) For any cumulative
trauma claim, findings regarding the injury and the date of the injury must be based on substantial
evidence such as medical opinion and testimony considering the entire record. (Garza v.
Workmen's Comp. App. Bd. (Garza) (1970) 3 Cal.3d 312, 317-319 [33 Cal.Comp.Cases 500];
Austin, supra, at pp. 233- 241; City of Fresno v. Workers' Comp. Appeals Board (Johnson) (1985)
163 Cal.App.3d 470-473 [50 Cal.Comp.Cases 53].
Pursuant to section 5410, if a case has already been settled, within five years from the date
of the original injury, the applicant must either establish that "the original injury" "caused new and
Labor Code sections 5701, 5906; McDuffie v. Los Angeles County Metropolitan Transit Authority (2001) 67 Cal.Comp.Cases 138
The Appeals Board has discretionary authority to develop the record when medical evidence is not substantial or to provide due process.
The Board ordered further development of the record due to inconsistent and unclear medical opinions.
From the decision · page 6Further, it is well established that the Appeals Board has the discretionary authority to
develop the record when the medical record is not substantial evidence or when appropriate to
provide due process or fully adjudicate the issues. (Lab. Code, § 5701, 5906; Tyler v. Workers'
Comp. Appeals Bd. (1997) 56 9 Cal.App.4th 389 [62 Cal.Comp.Cases 924]; see McClune v.
Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117 [63 Cal.Comp.Cases 261].) In McDuffie
v. Los Angeles County Metropolitan Transit Authority (2001) 67 Cal.Comp.Cases 138 (Appeals
Bd. en banc), we stated that "Sections 5701 and 5906 authorize the WCJ and the Board to obtain
additional evidence, including medical evidence, at any time during the proceedings (citations)
[but] [b]efore directing augmentation of the medical record... the WCJ or the Board must establish
as a threshold matter that specific medical opinions are deficient, for example, that they are
inaccurate, inconsistent or incomplete." (McDuffie, supra, at p. 141.) The preferred procedure is
to allow supplementation of the medical record by the physicians who have already reported in the
case. (Id.)